wills: contract to make a will and not revoke: injunction against revocation

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Wills: Contract to Make a Will and Not Revoke: Injunction against Revocation Source: Michigan Law Review, Vol. 26, No. 4 (Feb., 1928), pp. 464-465 Published by: The Michigan Law Review Association Stable URL: http://www.jstor.org/stable/1279754 . Accessed: 19/06/2014 12:32 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. . The Michigan Law Review Association is collaborating with JSTOR to digitize, preserve and extend access to Michigan Law Review. http://www.jstor.org This content downloaded from 91.229.248.152 on Thu, 19 Jun 2014 12:32:49 PM All use subject to JSTOR Terms and Conditions

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Page 1: Wills: Contract to Make a Will and Not Revoke: Injunction against Revocation

Wills: Contract to Make a Will and Not Revoke: Injunction against RevocationSource: Michigan Law Review, Vol. 26, No. 4 (Feb., 1928), pp. 464-465Published by: The Michigan Law Review AssociationStable URL: http://www.jstor.org/stable/1279754 .

Accessed: 19/06/2014 12:32

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact [email protected].

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The Michigan Law Review Association is collaborating with JSTOR to digitize, preserve and extend access toMichigan Law Review.

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Page 2: Wills: Contract to Make a Will and Not Revoke: Injunction against Revocation

MICHIGAN LAW REVIEW MICHIGAN LAW REVIEW

must allege and prove the lack of good faith. The legal title to land gives a prima facie right to it and it is not to be presumed that the holder holds in trust. Ordinarily the plaintiff must aver and prove facts sufficient to overcome it to put the defendant to proof of a prima facie right or title. Hardman v. Cabot, 60 W. Va. 664, 55 S.E. 756; Harris v. Stone, 15 Ia. 273; Bartlett v. Varner's Erecutor, 56 Ala. 580; Wyrick v. Week, 68 Cal. 8, 8 Pac. 522. On principle it would seem that the solution of the problem by Dean Langdell, LANGDELL S SUMMARY OF EQUITY PLEADING, 90-9I, is very well reasoned. The question will never arise, he says, except where the defendant has legal title to property and the plaintiff tries to charge him with an equity upon the sole ground that he is in privity with the person originally subject to the equity. The defendant under such circumstances should have the burden of proving his purchase for value; otherwise the plaintiff may be required to allege and prove a negative. But the plaintiff clearly has no case against the defendant until it is made to appear that the latter is privy to the plaintiff's equity. If so, the plaintiff has the burden of proving that the defendant had notice of his equity. That the Carbon County Land Co. cannot purchase the land in the principal case from the state, or even from a bona fide purchaser from the state, free from the taint of their fraud, seems well supported by the cases. Williams v. Williams, I8 Mich. 477, 76 N.W. IO39; Talbert v. Single- ton, 42 Cal. 390; Schutt v. Large, 6 Barb. (N. Y.) 373; Clark v. McNeal, 114 N. Y. 287, 21 N.E. 405. Nor can one protect himself from the consequences of his fraud by having the legal title conveyed to an innocent third person. Moore v. Crawford, I30 U. S. I22, Girard Co. v. Lamoureaux, 227 Mass. 277, II6 N.E. 572. This case is probably more important because of the unusual interest of the public in the facts involved rather than for it's issues of law.

WILLS-CONTRACT TO MAKE A WILL AND NOT REVOK1--INJUNCTION

AGAINST REVOCATION.-The defendant contracted to execute a will leaving all her property to the plaintiff. She also agreed not to revoke such will. The will was executed in accordance with the contract. Later the defendant repudi- ated her agreement and threatened to revoke the will. The plaintiff sued to enjoin her from breaking her contract and revoking the will. Held, that since

equity will specifically enforce a contract to make a will, if such a will has been made and the promisor seeks to revoke it, an action to enjoin such re- vocation in violation of the contract may be maintained in the lifetime of the promisor. Lovett v. Lovett, (Ind. I927), 155 N.E. 528 and 157 N.E. o14.

A contract to bequeath or devise property is valid and enforceable if it has the other requisites of a valid contract. I PAGE ON WILLS, 2nd ed., 156. A breach of such a contract by mere non-performance cannot occur until the death of the promisor. Bolman v. Overall, 80 Ala. 45I, 2 So. 624, 60 Am. Rep. IO7. The remedy in equity for such breach is in the nature of specific performance, the court imposing a trust on the property in the hands of the

personal representative of the deceased or of his heir or next of kin, or of the devisee or legatee of an inconsistent will, for the benefit of the promisee. Bolman v. Overall, supra. Where the promisor has not repudiated his contract and merely neglects to execute the will, equity will not decree that he shall execute a specific will in a suit brought in his lifetime since he has all the

must allege and prove the lack of good faith. The legal title to land gives a prima facie right to it and it is not to be presumed that the holder holds in trust. Ordinarily the plaintiff must aver and prove facts sufficient to overcome it to put the defendant to proof of a prima facie right or title. Hardman v. Cabot, 60 W. Va. 664, 55 S.E. 756; Harris v. Stone, 15 Ia. 273; Bartlett v. Varner's Erecutor, 56 Ala. 580; Wyrick v. Week, 68 Cal. 8, 8 Pac. 522. On principle it would seem that the solution of the problem by Dean Langdell, LANGDELL S SUMMARY OF EQUITY PLEADING, 90-9I, is very well reasoned. The question will never arise, he says, except where the defendant has legal title to property and the plaintiff tries to charge him with an equity upon the sole ground that he is in privity with the person originally subject to the equity. The defendant under such circumstances should have the burden of proving his purchase for value; otherwise the plaintiff may be required to allege and prove a negative. But the plaintiff clearly has no case against the defendant until it is made to appear that the latter is privy to the plaintiff's equity. If so, the plaintiff has the burden of proving that the defendant had notice of his equity. That the Carbon County Land Co. cannot purchase the land in the principal case from the state, or even from a bona fide purchaser from the state, free from the taint of their fraud, seems well supported by the cases. Williams v. Williams, I8 Mich. 477, 76 N.W. IO39; Talbert v. Single- ton, 42 Cal. 390; Schutt v. Large, 6 Barb. (N. Y.) 373; Clark v. McNeal, 114 N. Y. 287, 21 N.E. 405. Nor can one protect himself from the consequences of his fraud by having the legal title conveyed to an innocent third person. Moore v. Crawford, I30 U. S. I22, Girard Co. v. Lamoureaux, 227 Mass. 277, II6 N.E. 572. This case is probably more important because of the unusual interest of the public in the facts involved rather than for it's issues of law.

WILLS-CONTRACT TO MAKE A WILL AND NOT REVOK1--INJUNCTION

AGAINST REVOCATION.-The defendant contracted to execute a will leaving all her property to the plaintiff. She also agreed not to revoke such will. The will was executed in accordance with the contract. Later the defendant repudi- ated her agreement and threatened to revoke the will. The plaintiff sued to enjoin her from breaking her contract and revoking the will. Held, that since

equity will specifically enforce a contract to make a will, if such a will has been made and the promisor seeks to revoke it, an action to enjoin such re- vocation in violation of the contract may be maintained in the lifetime of the promisor. Lovett v. Lovett, (Ind. I927), 155 N.E. 528 and 157 N.E. o14.

A contract to bequeath or devise property is valid and enforceable if it has the other requisites of a valid contract. I PAGE ON WILLS, 2nd ed., 156. A breach of such a contract by mere non-performance cannot occur until the death of the promisor. Bolman v. Overall, 80 Ala. 45I, 2 So. 624, 60 Am. Rep. IO7. The remedy in equity for such breach is in the nature of specific performance, the court imposing a trust on the property in the hands of the

personal representative of the deceased or of his heir or next of kin, or of the devisee or legatee of an inconsistent will, for the benefit of the promisee. Bolman v. Overall, supra. Where the promisor has not repudiated his contract and merely neglects to execute the will, equity will not decree that he shall execute a specific will in a suit brought in his lifetime since he has all the

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Page 3: Wills: Contract to Make a Will and Not Revoke: Injunction against Revocation

RECENT IMPORTANT DECISIONS

rest of his life to perform. Maud v. Maud, 33 0. S. I47. But if the promisor repudiates the agreement in his lifetime and makes a conveyance in violation thereof to one not a bona fide purchaser for value, equity may set aside the fraudulent conveyance, Bird v. Pope, 73 Mich. 483, 41 N.W. 514; or decree that the grantee hold the property subject to the provisions of the contract, Teske v. Dittberner, 63 Neb. 607, 88 N.W. 658; 65 Neb. I67, 91 N.W. I8I and 70 Neb. 544, 98 N.W. 57. If the promisor repudiates the contract in his lifetime and threatens to violate its terms, it has been held: that equity will enjoin him from conveying away the property in violation of the contract, Carmichael v. Carmichael, 72 Mich. 76, 40 N.W. 173, I L. R. A. 596; Pflugar v. Pultz, 43 N. J. Eq. 440, I Atl. 123; will decree that the promisor holds the property in trust for his own use for life with remainder in fee to the promisee, Duvale v. Duvale, 54 N. J. Eq. 58I, 35 Atl. 750 and 56 N. J. Eq. 375, 39 Atl. 687, 40 Atl. 440; will enjoin him from making a will devising the property in violation of the agreement, Duvale v. Duvale, supra. The principal case adds the remedy of enjoining the promisor from revoking a will made in compliance with the contract. No doubt one of the prime considerations which have lead courts to refuse to order a promisor to execute a specific will is that it would be futile to order one to do that which he may immediately undo. Similarly, it may be said of the principal case that the decree is impossible of enforce- ment due to the comparative ease with which the injunction could be evaded by a secret revocation. Probably such revocation would be effective at law, HUSTON, ENFORCEMENT oF DECREE S IN EQUITY, 22, 55; 43 A. L. R. 1024;

and upon its discovery after the defendant's death, even the long arm of the chancellor would fail to reach the contemnor. However, even if the injunc- tion be disobeyed, the promisee may still resort to the conventional remedies after the death of the promisor. In the meantime, his rights under the con- tract will have been established and he will have the added security of the injunction which, it is presumed, will not be disregarded, and which in fact will almost invariably be obeyed.

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